Substantial evidence: get the reporter's transcript!

If you intend to rely on this standard of review, you must provide a reporter’s transcript of the proceedings.  If you don’t, you will not be able to challenge the sufficiency of the evidence, because you won’t be able to present the entire record to the court.  As a consequence, the court will conclusively presume the evidence supports the judgment.  (In re Estate of Fain (1999) 75 Cal. App.4th 973, 992.)

In In re Estate of Fain, supra, the court stated:

“Where no reporter’s transcript has been provided and no error is apparent on the face of the existing appellate record, the judgment must be conclusively presumed correct as to all evidentiary matters.  To put it another way, it is presumed that the unreported trial testimony would demonstrate the absence of error     . . . The effect of this rule is that an appellant who attacks a judgment but supplies no reporter’s transcript will be precluded from raising an argument as to the sufficiency of the evidence.”

(Id. at p. 992; italics in original; citation omitted.)

          It makes sense that the reporter’s transcript must be provided, especially when the standard requires a consideration of the entire record.  (In re Estate of Young (2008) 160 Cal.App.4th 62, 76.)  Quite often, the losing party will be able to point to favorable evidence – often ignoring the evidence supporting the winning party.  Taking this approach can result in alienating the court, particularly when the winning party can present a whole laundry list of evidence that was favorable to him or her.  This approach can even result in a waiver of the point on appeal. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.)

           As a point of caution, appellants often complain that the evidence in favor of the respondent cannot be substantial because the other side was lying and was simply not credible.  That is not enough because the trier of fact can believe one side and not the other.  But if the evidence is not credible because the testimony was physically impossible or obviously false, then such a challenge might be successful.  What is important here is to provide the facts necessary to show on the record, and not for the first time on appeal, that the purported evidence is either physically impossible or false.